Citation Nr: 1243503
Decision Date: 12/19/12 Archive Date: 12/27/12
DOCKET NO. 11-15 899 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
A. Lindio, Counsel
INTRODUCTION
The Veteran served on active duty from August 1961 to September 1977 and from March 1982 to March 1986.
The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefit sought on appeal.
This matter was previously before the Board in May 2012. At that time, the Board remanded the claim for additional development.
In his May 2011 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board. In a subsequent March 2012 letter, the Veteran stated that he wished to withdraw his request for a hearing. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e).
The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. A claim of TDIU has not been raised by the record in this appeal and the issue will not be addressed herein.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
The Veteran's lumbosacral strain is not manifested by forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for a lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
With regard to the claim for an increased rating, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486.
The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id.
In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant.
In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009).
In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in September 2009, prior to the initial RO decision that is the subject of this appeal. Through the letter VA informed the Veteran that the evidence must support a worsening of his disability to substantiate the claim. The letter also informed him of VA's duty for obtaining pertinent evidence under federal control and that it would aid him in obtaining pertinent evidence not under federal control, but that it was his responsibility to obtain such evidence.
The September 2009 letter also included notice with respect to the Dingess requirements of what type of evidence is necessary to establish an effective date. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied.
Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. For this reason, no further development is required regarding the duty to notify.
Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
With regard to records, VA has associated with the claims folder the Veteran's service treatment records and private medical records identified by the Veteran. The record does not indicate that the Veteran received treatment for the spine from VA. The Veteran has not indicated that there exist any records of VA or private VA medical treatment relative to this claim that are not already in the claims file.
In addition, he received a VA medical examination in December 2009. The VA examination provided specific medical opinions pertinent to the issue on appeal and findings sufficient to make a decision.
The Board remanded the Veteran's claim in May 2012 and instructed the AOJ to provide a more current VA examination. The Veteran was scheduled to receive another VA examination in May 2012, but failed to report for the examination. The Veteran failed to contact the RO and the RO subsequently issued a supplemental statement of the case denying the claim in November 2012. As the Veteran failed to report for the scheduled examination and has not provided good cause as to why he was unable to report for his VA examinations, his claim will be decided on the evidence of record. 38 C.F.R. § 3.655.
The Board also directed the agency of original jurisdiction (AOJ) to request that the Veteran identify any treatment for his lumbar spine, including the medical provider that recommended back decompression treatment. The AOJ provided that notice in a May 2012 letter. The Veteran did not respond to that letter. Indeed, in November 2012, the Veteran reported that he did not have any additional evidence and requested that his claim be decided by the Board immediately.
Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Applicable Law
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).
The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degree; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.
Factual Background
The Veteran contends that his service-connected lumbosacral strain is more severe than indicated by his current 20 percent disability rating. In his April 2010 notice of disagreement he reported increased pain. In his May 2011 substantive appeal, he again reported increased pain and further noted that he had received decompression treatment. In a September 2009 statement, the Veteran reported that his back had deteriorated to a point that he is in constant pain.
The Veteran has received treatment for his lumbosacral strain from numerous private medical providers.
In an August 12, 2009 record, Dr. J.M. Sorenson noted the Veteran's complaints of back pain that did not radiate to his legs, but was exacerbated by standing and could cause difficulty with sleep. An MRI of the lumbar spine showed significant degenerative disc disease at L5-S1 and mild bulging at L3-4. Dr. Sorenson did not appreciate any nerve root compression and diagnosed him with a chronic mechanical low back pain without radiculopathy. In an August 21, 2009 private medical record, Dr. Sorenson provided a lumbar epidural block and noted low back pain predominantly of a nociceptive character that rarely radiated into the legs, but that it had done so in the past.
On November 3, 2009, Dr. M. von Holtz performed range of motion testing on the Veteran. She found his lumbar flexion to be 45 degrees. She also found extension, bilateral lateral flexion and bilateral rotation to be within normal limits.
In other private medical records from the Back Relief Pain Clinic, the Veteran complaints of pain ranged from severe (October 2009) to mild (November 2009) to no pain (December 2009). In an undated record, a medical provider noted that the Veteran had been referred to the clinic in October 2009, that the provider found him to be a good candidate for non-surgical spinal decompression and that the Veteran agreed to such treatment. In a "Follow-up" section of the note, the medical provider found the Veteran to be progressing well and that physical examination revealed no pain with dorso-lumbar range of motion. In a December 2009 progress note, the medical provider noted that the Veteran had continued improvement in posture and had normal low back range of motion without pain, tight muscles or tenderness.
The Veteran received a VA examination in December 2009. The record is unclear as to whether the claims file was reviewed. The Veteran reported pain that was sometimes excruciating, but of a nonradiating nature. He specifically denied pain and numbness in the legs or feet. He also reported past chiropractic treatment, decompression and nerve blocks. He noted daily flare ups with standing and sitting and that he drank bourbon at night to go to sleep. He claimed that it affected his ability to sit, stand and perform activities. He denied bedrest and bowel or bladder dysfunction.
Analysis
The record does not indicate that the Veteran's lumbosacral strain manifestations are indicative of a disability rating in excess of 20 percent. As previously indicated, the next applicable higher disability rating possible would be for a 40 percent evaluation, for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The ratings in excess of 40 percent require findings of unfavorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237.
In the present case, the record repeatedly indicates that the Veteran does not have ankylosis of the thoracolumbar spine. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the ranges of motion found by the VA examiner and the various private medical providers, the Board finds that that the Veteran does not have ankylosis.
Additionally, the VA examiner found forward flexion in excess of 30 degrees, without pain. Similarly, private medical providers (including Dr. M. von Holtz in November 2009 of 45 degrees of forward flexion) similarly did not note findings of forward flexion of 30 degrees or less, even when considering pain. As such, a disability rating in excess of 20 percent for the lumbosacral strain is not warranted.
It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flareups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 20 percent disability evaluation. The December 2009 VA examiner noted forward flexion without pain at the examination. The VA examiner also noted that the Veteran had pain, particularly after activity, but was unable to address such matters without resorting to speculation. As previously noted, the Veteran failed to report for the May 2012 VA examination, which had been scheduled to provide a better evaluation of the Veteran's functional loss. As such, the claim must be decided on the evidence of record. 38 C.F.R. § 3.655.
Even when considering the Veteran's pain with motion and his reports of loss of motion, the Veteran still does not meet the criteria for a disability rating in excess of 20 percent. There is no evidence of record to support finding functional impairment consistent with symptoms indicative of a higher disability rating. Indeed, the December 2009 VA examiner found that although the Veteran's spine inhibited his daily activities, the Veteran was still very active. Also, range of motion findings of record were consistently well in excess of 30 degrees of forward flexion and did not indicate that the Veteran's disability was so severe as to be consistent with ankylosis. As such, a disability rating in excess of 20 percent for lumbar spine disability is denied.
Although the Veteran has reported pain associated with his range of motion, the Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Indeed, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Code 5260 and 5261 simply because she experienced pain throughout the range of motion of her knee. Id.
The Board must also evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. Under Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. In this case, the Veteran denied neurological abnormalities bowel or bladder problems during his VA examination. None of the other medical evidence of record documents medical findings of bowel or bladder impairment related to the Veteran's spine. The Board notes that in a February 2010 rating decision, the RO granted service connection for prostate cancer.
The record also does not indicate that the Veteran has any neurologic abnormalities of the lower extremities due to his service-connected lumbosacral strain. In August 2009, Dr. J.M. Sorenson reported that the Veteran complained of back pain that did not radiate into his legs. Although the Veteran reported that it had radiated in the past, Dr. Sorenson found him to not have any nerve root compression and diagnosed him with chronic mechanical low back pain without radiculopathy. Similarly, during the December 2009 VA examination, the Veteran denied pain or numbness in his legs or feet. Given such findings, the Board finds that separate ratings for neurological abnormalities are not warranted.
With respect to intervertebral disc syndrome, under Diagnostic Code 5243, based on incapacitating episodes, a 40 percent rating evaluation would require incapacitating episodes of a total duration of at least four weeks but less than six
weeks during the past twelve months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. No evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for his service-connected lumbosacral strain. Indeed, during the December 2009 VA examination he denied bedrest.
Finally, the disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The rating criteria are not inadequate. Higher ratings are available for the service-connected disability; however, the Veteran simply does not meet those criteria.
As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for a disability rating in excess of 20 percent for his service-connected lumbosacral strain is denied.
ORDER
An evaluation in excess of 20 percent for a lumbosacral strain is denied.
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs